No. 657 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7901439
Leonard I. Sharon, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Hester, Brosky and Van der Voort, JJ.
[ 284 Pa. Super. Page 530]
On February 15, 1979, appellant, Ronald Simms, and co-defendant, Phillip Mills, were arrested and charged with possession and delivery of a controlled substance*fn1 in violation of the Drug Act.*fn2
On the first day of the jury trial of Simms and Mills, counsel for Simms requested, and was granted, a mistrial because of a prejudicial statement made by the prosecutor during his opening remarks to the jury. The central issue for our determination is whether reprosecution is barred by the double jeopardy clause of the United States Constitution.*fn3 The trial court held that reprosecution was not barred because there was no indication that the prosecutor was acting in bad faith or was attempting to harass or prejudice Simms, the standard to be applied where a defendant has been granted a mistrial at his request and seeks to bar retrial on double jeopardy grounds. We so hold and affirm.
The request for a mistrial resulted here from the assistant district attorney's statement that, upon being arrested, Phillip Mills had pointed to Simms and stated that Simms had
[ 284 Pa. Super. Page 531]
given him the drugs. Defense counsel for Simms argued that in addition to this statement constituting impermissible hearsay, it violated Simms' constitutional right to confrontation and cross-examination,*fn4 since counsel for Mills had indicated that he did not intend to put his client on the stand. The underlying rationale of the double jeopardy clause is that
[t]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957).
It has been said that the clause "[e]mbraces the defendant's valued right to have his trial completed by a particular tribunal." United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). When the first proceeding ends in a mistrial, the defendant's right to have his trial completed by the tribunal has been frustrated. In this ...